What are employers’ obligations to workers in relation to long-term sickness or disability?
Statistics recently released by the Office for National Statistics revealed long-term illness levels in the UK are at an all-time high, with over 2.5 million people off work due to poor health. While any organisation can find itself with an employee on long-term sick leave, the construction industry is at greater risk because of the nature of the work. Accidents at work are more prevalent, while illness or injury are more likely to render an employee unable to work as normal. Consequently, construction businesses need to be well prepared. Outlined below is some information to help employers stay on top of issue.
As a starting point, employers should ensure they have an effective sickness policy in place. This will reduce legal risk, facilitate dealing with absences consistently and effectively, and signpost to employees the standards of attendance and reporting expected.
Keeping track and assessing risk
To prevent smaller issues progressing into chronic problems, keeping track of sickness absence and assessing risk to the overall health of employees is crucial. Employers in the construction industry should be familiar with their legal obligations to carry out risk assessments and review these for individuals who develop physical or mental health vulnerabilities.
Employers should check in with an employee on long-term sick leave regularly to get updated on their medical condition, maintaining a paper trail of those interactions and any information regarding the employee’s health.
After some weeks, and always following their own sickness policies, employers should begin formal meetings to get to grips with the employee’s prognosis: how long is the employee likely to be off work, when are they likely to be fit for work again, and is the employee suffering from a disability? In many instances, it will be important for employers to ask the employee to have a medical examination. It is advisable to reserve the right to request this in the employment contract.
Employees with a disability
If the employee has a disability (which is any long-term physical or mental health condition which has a substantial adverse effect on day-to-day activities), the employer is under a legal duty to make reasonable adjustments to enable them to work more easily, and not to discriminate. This may include keeping their job available to them, being flexible with working patterns or providing special work equipment.
If an employer treats an employee unfavourably because of something arising from their disability, that could be unlawful discrimination (for example, issuing a disciplinary warning for high levels of absence due to chemotherapy). Disability-related sickness absences should usually be treated more leniently as a reasonable adjustment.
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Employers could face a number of claims if they are not careful how they treat sick employees who are disabled, including disability discrimination and unfair dismissal. When faced with an employee with a long-term health condition, employers should focus on the reasonable adjustments they can make, rather than trying to work out if an employee’s condition is a disability.
Conduct during sick leave
Being on sick leave does not release an employee from all obligations towards the employer. They must still comply with lawful and reasonable orders, to the extent possible in light of their health.
However, employers do not have absolute control over their employee’s activities, even if the employee is on full sick pay. In the case of Ms V Lindsay vs HBOS, a Halifax Bank of Scotland employee won £22,000 after she was dismissed for continuing to promote her cake-making on social media while she was on long-term sickness absence.
Return to work
It is important to carry out back-to-work assessments for employees who have been seriously ill and absent from work for a long period. A return-to-work interview, or series of interviews, before an employee’s proposed return date will assist with establishing whether they are fit to come back and how best to reintroduce them to work. Managers and employees should work together to identify any adjustments that might make coming back easier, which might include a phased return to work.
Dismissal and its alternatives
In most cases an employer cannot simply dismiss an employee for taking sick leave. It must act fairly and reasonably and follow a fair procedure, like a capability process. Although employees need at least two years’ service to accrue unfair dismissal rights, employers can still face claims from recent hires for discrimination, from day one of employment.
Employers should therefore be wary of taking disciplinary action or dismissing employees on the basis of “excessive” sick days taken, particularly if the employee is disabled or pregnant, or where the employer is potentially responsible for the employee’s ill health. In these scenarios, decision-making can be nuanced and taking specialist legal advice at an early stage is often useful.
While the nature of construction may mean a higher rate of long-term sickness than desk-bound sectors, employers can take steps to reduce the risk of legal claims. This includes ensuring that employment policies are comprehensive and regularly circulated so employees know what to expect should they fall ill and managers know what steps to take to ensure they follow reasonable, fair and consistent procedures.
Louise Attrup is a partner and head of the employment team at Debenhams Ottaway